Transcripts For CSPAN3 James Madison And The Constitution 20160726

Documents should include a bill of rights. Mr. Brookhiser explores the conflicting opinions of Founding Fathers george mason, James Madison, Thomas Jefferson and Alexander Hamilton while also addressing how the bill of rights were eventually ratified by the new states. The New York Historical society hosted this hourlong event. So tonights program is James Madison, father of the constitution, and its part of our carl menges lecture series in american history. Id like to thank carl menges for all his support and for helping us to create this series and for all he does as a valued member of New York Historical Society Board of trustees, carl, thank you. [ applause ] id also like to recognize and thank trustees lon jacobs, cy sternberg and all our Chairmans Council members with us for all their great work and support as well, lets give them all a hand, too. [ applause ] so the program tonight will last an hour and include a questionandanswer session and there will be a formal book signing following the program and our speakers books can be found in our museum store and he will be signing on the Central Park West side, and we are thrilled to welcome richard brookhiser, renowned historian and author back to the New York Historical society. Mr. Brookhiser is a Senior Editor of National Review as well as a columnist for american history. In 2004, he acted as historian curator for New York Historicals exhibit Alexander Hamilton, the man who made modern america. And in 2008, mr. Brookhiser received the National Humanities medal. He has also written numerous books on revolutionary america, including the biography of James Madison which is why we have him here tonight. Before we begin, id ask that you please turn off cell phones, Electronic Devices for the duration of the program and now please join me in welcoming rick brookhiser. [ applause ] thank you all for coming. I was just speaking with carl menges and we were remembering that we had first met in 2002 when carl had a program at his alma mater, hamilton college, about Alexander Hamilton, and we were saying we were early adapters and the world has certainly caught up with our interest in that respect. The first 10 amendments to the constitution which we know of as the bill of rights were ratified on december 15, 1791. So that was 224 years ago yesterday. And James Madison was a major player in that story. And you will meet him in the course of the evening. But i want to begin with george mason, another virginian, and i want to begin on september 12, 1787. The Constitutional Convention has been meeting in philadelphia since the end of may with only one break. They have been hard at work. On september 12th, the committee of style gave them the final draft of the constitution. All the provisions that theyd hammered out had been given to governor morris, delegate from pennsylvania, and he trimmed, polished, edited, wrote a lovely preamble and now it was on their desks for their final discussions and fixes. And on that day george mason was recognized and he said we have not written a bill of rights. We havent done it. We could look at the bills of right that the states have in their constitutions. It would only take, he said, a few hours to write one. So Elbridge Gerry of massachusetts moved that there be a committee to do so, mason seconded. There was only one speech by Roger Sherman of connecticut, he said the state bills are still in force, we dont need another one and the vote was unanimous. Every state, including masons and gerrys voted no, to have no committee. So, on september 17th, the constitution was finally fixed, signed and it was sent to congress who would send it out to the states for ratification without a bill of rights. So what i want to talk about tonight is why mason suggested such a thing, why his colleagues, including James Madison, hadnt done it, but how the bill of rights then came to be written and ratified and ill have a few remarks about its later history. Bills of rights were a feature of Anglo American political thought and the beginning of it was said to be the magna carta, the great charter of 2015. We celebrated its 800th anniversary this year and this was a document that was signed by king john. King john was very good at collecting taxes. He was very bad at waging foreign wars. He also had a reputation for cruelty. He probably wasnt crueller than most kings of the middle ages but he had the reputation for it. Winston churchill in his history of the englishspeaking peoples talks about the disappearance of one of johns rivals and he writes that he was murdered by johns orders was not disputed at the time or afterwards. Though whether he was mutilated or blinded beforehand remains unanswered. So the barons of england felt they were oppressed and misgoverned and they were at the verge of revolt. The compromise that prevented actual civil war was the magna carta or the great charter and it is not a bill of rights as we would understand it today. It is a feudal contract between a king and his most important liege lords. It lays out his obligations to them, theirs to him. A lot of it is very detailed on medieval property questions. Theres a lot about forestry law. Theres a whole section on how to deal with wales which had been newly acquired by england. But there were several points that would later on become items of later english and american bills of rights. One provision said that no freeman shall betaken or imprisoned except by the lawful judgment of his peers now freeman there means a nobleman, it doesnt mean a wealthy commoner, even a wealthy one, but this does set up the principle of trial by jury, judgment of his peers. It also says the lawful judgment of his peers so theres an implication of due process of law even as early as 1215. If youre going to be imprisoned or punished you have to be judged by your peers and there has to be some lawful reason for it. Now, there would be many holes in this over the years but this principle is being laid down. Magna carta also says barons can petition to have transgressions regressed. They can go to the king where their petitions, with their complains, and he has to listen to them, doesnt have to answer them, doesnt have to satisfy them but he has to listen to them and that again is a very important point, the right to petition about your grievances. The next step in this history is 1688. We have another unpopular king in england, this is james ii. He was the last king of the house of stewart. He had risen to the throne after the death of his older brother charles ii. Now, charles and james agreed with each other on their policy positions. They were both catholics who were sympathetic to catholicism and they both believed in royal power. But charles was charming, cautious and lucky, and james was none of these things. Charles only converted to catholicism on his deathbed. And although he had 20 children, none of them were legitimate so he wasnt going to pass on anything to his heirs. One of his his most popular girlfriend was the actress nell gwynn and she stopped a mob which was attacking her carriage by crying out good people, im the protestant whore so they left her alone. [ laughter ] now, james was an honest, earnest and forthright adult convert to catholicism and he also had a son. Now in england in 1688 meant the spanish armada and louis xiv. The spanish armada was history but louis xiv was very much alive. And england could swallow a Catholic King but they could not swallow a string of them. So after james had a son in 1688 the nation rose up and offered the crown to william of orange who was james nephew and soninlaw. Hed married his elder daughter mary. The family the house of stewart was sort of like sopranos in turn of its internal dynamics. And william accepted as a condition of being king of england a bill of rights which parliament passed in 1689. These were going to be the rules for his rule, he was announcing that these were the principles that would guide him. And this was an advance on the magna carta. The right of petition was extended beyond barons, trial by jury was reaffirmed, especially in trials for high treason. The english bill of rights guaranteed freedom of speech in parliament and the right of protestants to have arms for their defense. Now, one of the fears about james was that he was filling the senior ranks of the army with catholic officers and people feared that there would be a religious coup so the right to bear arms was put in writing for protestants. Then there was a provision, excessive bail ought not to be required nor excessive fines imposed for crucial and unusual punishments inflicted. So, this was saying that the english legal system could not crush a person financially and it could not torture a person. And these were obviously principles that would march on. In the next century after american independence states passed their own bills of rights and the most famous of them was by the largest, most important state that was virginia in the spring and summer of 1776, known as the declaration of right. And the man who wrote this was george mason. Now george mason, he was an interesting character. He was a planter, he was a neighbor of George Washington, the two of them hunted foxes together. He has a beautiful house, gunston hall, which is opened to tourists in virginia. It has just a lovely great hall that he commissioned and a lot of men of the founding generation deplored any expression of ambition. You werent supposed to be ambitious and you certainly werent supposed to show it. The ideal was the roman hero who left his plow to fight for rome and after the threat passed he went back to his farm and yet, we see that a lot of these men, they held office, they ran for office, they served in the army, they had commanding positions in the army, george mason actually seemed to believe it. He talked the talk of no ambition and he also behaved that way. He did not like to hold office, he held it on rare occasions, when he was called in 1776 to be in the new postindependence Virginia Legislature he went and he took the job of writing a declaration of rights but he complained that the committee would have useless members who would make a thousand ridiculous and impractical proposals. So he was going to write it all himself. And he did and he did a very good job. He called for speedy trials by juries in criminal cases. So its not just trial by jury but speedy trials. And also trials in civil suits. He copied the english bills of rights language on excessive bails and fines and cruel and unusual punishments. He condemned general warrants that allowed searches without evidence of particular offenses. So, in other words, if youre going to search a mans house you have to say what youre looking for. You cant just go in the house and see what crimes he may have committed, you have to have a warrant that specifies what you are likely to find or what you think youre likely to find. Mason praised freedom of the press, he praised militias composed of the body of people trained to arms and he also called for the fullest toleration of religion. Now there he accepted a correction from one of his committee members, this was 25yearold James Madison. And the language of fullest toleration comes from john lock and its a liberal sentiment for the late 18th century. But James Madison did not think it was liberal enough. He had been a defender of virginias religious minorities already for two years as early as 1774 when hes 23 years old. Hes enraged by the treatment that virginias baptists are suffering at the hands of the established episcopal majority. Hes not a baptist himself but it disgusts him that men are being imprisoned for their convictions. He argues about it with his friends, probably with his father who was a vestryman and when he is on the committee to write the declaration of rights he insists that the language be changed to all men are equally entitled to the free exercise of religion. So, its not just toleration its an entitlement. You dont have it because someone allows you to have it, you have it because you are entitled to have it and its the free exercise of religion, not just worship. Its broader than worship. Its the free exercise of your religion. So this was a world historical shift in the understanding of religious liberty in the virginia declaration of rights. This was approved in june, 1776, three weeks before the declaration of independence. So now lets go back to 1787 and philadelphia. Why, with all these precedents had the Constitutional Convention not written a bill of rights . Well, certainly by the time george mason spoke they were all tired and they wanted to get home but justifications were given when the constitution went out to the states for ratification. One of the first states to ratify at the end of 1787 was one of the largest, pennsylvania. And that was a very rough ratification process. The supporters of the constitution had the majority, they knew it, they wanted to vote the thing through and get it done. When antifederalists tried to deprive them of a quorum they sent people out to snatch them on the streets and hustled them into the room so they could be counted. It was bare knuckle hard ball politics. There was one supporter of the constitution, james wilson, a scotsman originally a lawyer in philadelphia who gave some intelligent and long defenses of the constitution. And one of the things he defended was the absence of a bill of rights and the argument he made was that the english bill of rights and magna carta had all been carved from a background of royal power. England had a king so therefore you needed statements of what the king could not do to the people but, said wilson, in the United States power remains in the people at large and by this constitution they do not part with it. So his implication was the people will not oppress themselves, therefore we do not need a bill of rights in the new constitution. Another defense of an absence of a bill of rights was offered by Alexander Hamilton in new york and he did this in the secondtolast federalist paper, federalist 84. And here hamilton said mason had said power rather wilson said power remains with the people. But what hamilton said in federalist 84 is that there is no power to do the things that the supporters of the bill of rights fear. He said why declare that things shall not be done which there is no power to do. And the example he used was freedom of the press, he said, if you say that the press shall not be restrained, couldnt that give someone the idea that well maybe it could be regulated . In other words, if you draw a line, arent you tempting people to come right up to that line . Isnt it better to just leave the whole subject alone . That can sound like a too clever by half sophistical argument, but thats the way lawyers think. And its certainly the way ambitious men think. I think it was an interesting argument that hamilton was making. A third man who defended the fact that the constitution had not included a bill of rights was James Madison. He did it in letters to his best friend mentor Thomas Jefferson. Jefferson was in paris when all of this was going on. And he and madison wrote back and forth. Madison was keeping him informed of the new constitution and also keeping him on board. Madison agreed with jefferson he admired jefferson. I think he was charmed all his life by the lightning flashes of jeffersons mind. But he also knew that lightning was uncontrollable. So he had occasions where he had to guide jefferson and prompt him and bring him back down to earth. We can see madison trying to do it about the bill of rights. He wrote jefferson, virginia has a bill of rights, which of course jefferson knew. Madison had helped write it. But he said that i have seen the bill of rights violated in every instance where it has been opposed to a popular current. In other words, its in the virginia constitution but the legislature goes ahead and violates it whenever the people are in favor of it. He said its only a parchment barrier. The only security for peoples rights would be the structure of government, what we now call checks and balances. Jefferson wasnt having any of it. He kept responding to madison saying that a bill of rights was something that every people was entitled to have from every government. He used a metaphor drawn from architecture, one of the subjects dearest to his heart. He said, a brace will often keep up a building which would have fallen without it. You may think your building is strong, but put up an extra brace. Just do it. It will help keep the thing up. There were other forces working on madison and one of them was the states baptists, his old allies. Old political allies. And they were alarmed that there was no guarantee of religious liberty in the constitution. And they knew that madison was their friend and madison knew that they were his allies but they shared their concerns with him. They told him that they were upset and he paid attention to them. And he also had to Pay Attention to a man he didnt particularly like who was Patrick Henry. Now, Patrick Henry was brilliant. He was patriotic, he was eloquent. Madison and jefferson were certainly brilliant and patriotic and jefferson was eloquent on the page but neither of them were great speakers. Patrick henry was the greatest speaker of the late 18th century and jefferson and madison did not like him. Patrick henry seized on the lack of a bill of rights. He said, a bill of rights may be summed up in few words, why not write them down. Is it because it will consume too much paper . And henry made many, many arguments to this effect. So madison although virginia does ratify the constitution by the summer of 1788, its the tenth state to do it. And the margin is very narrow. There are 180 some delegates in the Virginia Convention and it passes by a margin of only ten. And it passes without any conditions. Its a full ratification. But it does say that there ought to be a bill of rights added, that it should be the first order of business of the new congress to add a bill of rights. And other states have made similar provisions in their ratification debates. Massachusetts, another one of the three largest states had done so. So had several other state. So James Madison is elected to the First Congress and which meets here in new york in the spring of 1789 and one of the top items on his agenda is to get a bill of rights through congress in that first year. Now, there are a lot of potential rights to choose from. When virginia approved the constitution they added a list of 20 rights they would like to see ratified, 20 changes, most of them rights. New york had a list of 33. There are other suggestions that came in. Madison had to deal with two sorts of skeptics. There are a number of members of the First Congress who said the constitution is brandnew, why are we proposing to change it right away . Shouldnt we let it operate for a while and then well see what we need to do . A more dangerous kind of skeptic were people in congress who were frankly opponents of the constitution. They were unhappy that it had been ratified and what they wanted were structural changes to the document. Madison was determined to keep those out. He thought the balance of power in the constitution between divisions of government and between the federal government and states, he thought that had been very well arranged. He wanted that to stay. But he was determined to have a bill of rights added. So thanks to his persuasion, congress forms a committee which meets in the summer of 1789 and madison has a list of rights. Many of them incorporate these provisions that ive discussed from virginia and from england. They are not quite what we got in the first ten. Madison has them in different order. Some of them were taken apart and some were joined together. He also wanted to add to the preamble and he had a statement that all rights come from the people and that the people always have a right to change their form of government. He also thought that the addition should be inserted into the constitution at the relevant places. He lost fortunately, i think, on both those. Roger sherman who was on the First Congress said if we change the preamble it will injure the beauty of the preamble we already have. He said lets list them all at the end. Lets not go into the text. Lets put all of the changes at the end. So congress, the house comes up with a list and sends it to the senate. And then the two houses dicker over it, and a list of 12 amendments goes out to the states for their consideration. Now, the first one of these has to do with the size of congressional districts. It never passes and this is a question that congress has simply addressed by legislation. And i think the size of a House District district in the house of representatives, represented 30,000 people. As the country grew, the size of districts had to expand or wed have thousands of members in the house. But this is all been done not by an amendment but by congress simply passing a law. The Second Amendment had to do with congressional pay raises. And it said there could be no pay raise until after the next election of representatives. So in other words, if youre a congressman, you cant vote a pay raise youre going to get until you face the voters. All right . So, now, this it was ratified by a number of states and then it stalled out. Then in 1978, a college kid at the university of texas at austin noticed that this potential amendment was still floating out there. It had some states had ratified it. He began a Letter Writing Campaign to state legislatures. Then in 1992, this amendment was finally ratified. It became the 27th amendment. So it had a 203year path into the constitution. That is still the record. Then there were amendments 3 through 12, which ill talk about. I will identify by the numbers we know them as, one through ten. But originally they were 3 through 12. What we have is a review and kind of summary of what has gone before and plus some new provisions. The First Amendment is an omnibus and presents congress from tampering with free rights of religion, freedom of speech or press, or the right to assemble or petition for grievances. That one goes back to 1215. The others are a little more recent. The Second Amendment broadened the right to bear arms from protestants to all of the people. And it added the phrase about the importance of a well regulated militia. The Fourth Amendment defined the proper scope of warrants. The sixth and seventh amendment said there should be jury trials in both criminal and civil cases and it said that criminal trials must be speedy. The eighth amendment simply repeated the language of the english bill of rights and of the declaration of rights about excessive bails and fines and cruel and unusual punishments. The other of the first ten amendments broke new ground. The third amendment addressed a grievance from the colonial period. It said it regulated the armys power to quarter soldiers in private homes. It said it had to be done with the owners permission in times of peace and had to be prescribed by law in times of war. In other words, even in times of war the army cant come to your house and say were sticking a platoon in here. There has to be a law passed to allow it to do so. The fifth amendment is a great omnibus. It concerns grand juries for infamous crimes and says that people should not be subject to double jeopardy, cant be tried twice for the same crime or cant keep being tried until youre finally convicted. It forbids selfincrimination. It guarantees due process of law. You cannot be deprived of life, liberty or property without due process of law. And it says that property may not be seized by the government without compensation. This is what we now think of as eminent domain. And then the ninth and tenth amendments address the concerns of Alexander Hamilton and james wilson. The ninth amendment says the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. In other words, if we say theres freedom of the press, you cant creep up to the very edges of that. There are still innumerated rights that the people possess, and by stipulating something, were not inviting you to come up to the borders of it. The tenth puts in black and white what wilson was talking about. The people and the states retained all powers not delegated or prohibited by the constitution. These amendments were submitted to the states. There was a flurry of approvals. By january of 1790, six states ratified and new york ratified in february and pennsylvania in march. 1790 rhode island in the summer and then the last two making them ratified were vermont in november 1791 and virginia finally in december 1791. Patrick henry had given up long before and said that virginia had been fooled and beaten, meaning that he had been fooled and beaten. Now for the longest time the bill of rights was not referred to in legal cases. There was a reference to the bill of rights. A bill of rights. In 1810 decision, fletcher v. Peck. This was one of marshalls great decisions. He said there was in the constitution a bill of rights for the people of each state, but what he was talking about what article i, section 9. In his mind, the bill of rights was the provision that no state shall pass a bill of attainder. An exex post facto law, or a law impairing the obligation of contracts. Now, thats something we just dont think of when we think of the bill of rights. Why would marshall say that . He was a smart, thoughtful man. And the best i can come up with is that these are in a way even broader provisions than the ones that are in the bill of rights. These are very sweeping prohibitions. Forbidding bills of attainder means you cannot pass a law criminalizing a person. You have to criminalize an act. You cannot criminalize a person. You cant pass a law criminalizing syed farook. You can pass a law criminalizing murder. And if hed lived, undoubtedly, he would have been charged and convicted of that. But you cannot pass laws that criminalize people. A very sweeping prohibition. You also cant criminalize acts that were legal when they were committed. If murder hadnt been illegal, after somebody commits a mass murder, you cant pass a law the next week saying, oh, that was illegal. You cant do that. You cant criminalize the past. You have to pass the laws and then whatever happens in the future can be dealt with. And then the right of contracts. You cant pass a law impairing the obligation of contracts. Well, that is a little more specific. Were talking about something as specific, say, as freedom of speech. But if you think about it, how many times do we enter into contracts versus how many times we make speech that the government might prohibit. Even contentious people in the audience, i mean, think about it. You know, maybe you argue with your family or whatever, but its not that often compared with all the contracts you enter into every day. So marshall is saying no, this is the bill of rights. This was the bill of rights in the constitution before any amendments were passed. Its an interesting thought. He also made a ruling in 1833. A case called baron versus baltimore. John baron was a man who owned a wharf in baltimore harbor, and the city had diverted some streams which caused silt to pile up by his wharf, made it impossible for ships to dock there. Then he sued the city of baltimore saying they violated his fifth amendment right. They had taken his property. In effect, they had taken the value of his property, without any legal proceeding. This case went up to the Supreme Court. The Supreme Court ruled that it was a matter of great importance but not of much difficulty. They said that the fifth amendment and the other amendments contained no expression indicating an intention to apply them to state governments. This court cannot so apply them. So the Supreme Court made the point that the first ten amendments applied to the federal government. They do not apply to the states. The fifth amendment appeared in a very important decision in 1857. This was the dread scott decision, where chief justice tawny ruled that property cannot be taken without due process of law. Therefore, a slave owner can take his slave into any territory of the United States. The missouri compromise, which had forbidden taking slaves into the northern part of the louisiana territory, was unconstitutional. Thats not a very auspicious appearance of the fifth amendment in our constitutional history. Then in 1868, after the civil war, the 14th amendment was passed. And here things begin to change. The 14th amendment says no state should make or enforce any law which shall abridge the privileges or immunities of citizens. Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person the equal protection of the laws. So here and it also says that Congress Shall have the power to enforce this amendment by appropriate legislation. Here the federal government is taking control of things that states may do. And they are applying the due process of law clause to states. The intention here was to protect freedman after the civil war. Slavery had been destroyed by the course of the war, and abolished by the 13th amendment, which was ratified in december of 1865. But then what happened to the freed men . A lot of them were reduced to a condition of in effect peonage. They had to get permission from white employers to show they were employed. If they didnt have such a document, they could be arrested as vagrants. It was not a good life they were leading. And congress was trying to rectify this. Only in the 20th century did the Supreme Court begin using the 14th amendment as a way of applying the bill of rights to state laws. Its a doctrine called incorporation. One of the most recent instances of it and controversial was the heller decision in 2010, which struck down a local gun control law because it said the Second Amendment refers to a right that people have, and states may not prohibit it. But im not going to go into detail on that. That is a topic for a second lecture on where we are now. I just hope i have showed you how we got here and where we started. So thank you very much and ill take your questions. [ applause ] now where are the microphones . Theres a microphone there. Theres a microphone there, in each one of the hallways. You get to ask its not like the Constitutional Convention. You get to ask one question. And i get to hold you to that. So any questions . I see someone coming to a microphone. Yes, sir. Great lecture. Thank you. [ applause ] i respectfully suggest that John Marshall was right, that there was a bill of rights in the original constitution. And i would like your comments on this. An independent judiciary, prohibition of expos facto and bills of attainder and then the tradition of the common law that developed over many, many years protecting individual rights. What is your thoughts on that . And this is not to say that we didnt need a bill of rights that would make it make the rights textually clear. From that point in time onward. Right. Well, i should tell you all that my next project is a biography of John Marshall. And ive just begun. You cant help but being impressed by this man. By both his intelligence and his clarity of expression. Certainly he makes a very powerful case. Hes very interested in contracts. And not prohibiting anything that will inhibit the obligation of contracts. And thats where you can say hes very forward looking. He does see the United States as an economic unit and he really pushes that as far as he feels he constitutionally can. Freedom of contract or free choice . You only get one question, but oh, yes, i said as much. We make contracts every day. If you consider any purchase a contract, which i suppose you could, we make dozens of contracts sometimes every day. Thats what makes the world go round. And marshall was smart enough to recognize that. His cousin, Thomas Jefferson, they hated each other, by the way. Absolutely hated each other. Jefferson thought of Different Things. He thought i think its fair to say he thought of things he himself did. He cared about freedom of speech because he was a great writer. He cared about religious liberty because his own religious opinions were rather eccentric. He cared about Thomas Jefferson. I dont mean that as a joke or to diminish him because we all partake of that. He wasnt passing a bill of attainder for himself. He was doing it for everybody. So its a deep debate and its an ongoing debate. And one of the pleasures of this project will be to see it in its early stages and to follow it out at its origin. Next question, sir. Good evening. You mentioned the word ambition probably about ten times during your lecture. I assume thats a reference to madisons ambition, his counteractive ambition. Another founder, hamilton, uses the term energetic. Are ambition and energetic mutually exclusive to those founders or do they mean Different Things . Certainly madison and jefferson thought they were mutually exclusive in hamiltons case. They were very alarmed by his energy and what he seemed to be doing with it. But you know, look, i said there is a paradox here. They know the myth of it and they apply it to themselves. They see that as an ideal. But they all go out into the arena. They all stand for office. They all hold office when duty calls, which it frequently does. They almost all respond. So theres a tension. Theres a tension. I think you know, i think one of the things that struck me, has struck me over the years in writing about George Washington is how i think his contemporaries were watching him. It was like a tightrope act. Here is this man. They made him commanderinchief and he was commanderinchief for eight and a half years and then he went home. Then there was a Constitutional Convention and, of course, hes the presiding officer. Then he goes home again. Then a presidency is established, and hes unanimously elected twice. Then he goes home again. You know, i think people, they knew him. They lived by him, sometimes serving at his side. They watched him, and i think i dont know if they would have ever formulated this, but it was like, well, yes, he didnt let us down there. He didnt let us down there. By god, he just didnt let us down. And it was admiration, maybe also tinged with anxiety. You know, suppose he slips. Suppose he grabs too far. And the anxiety, of course, is about themselves, too. Will i say, okay, fine, youre the man, go ahead and do it . It was a very interesting dance that he performed both for himself and with his peers. Yes, sir. I know you said the Second Amendment could by themselves be the subject of a separate lecture, but i do have a narrow question. Was there anything in the writings, what comments and speeches of madison that would be instructive on how he would have viewed the decision . Well, the one thing he says in the federalist papers, i think its 39, and its a passing remark. And he is comparing the United States favorably to europe and he says, well, you know, europeans will put up with a lot of stuff that we dont put up with here, and that we can resist because were armed. And hes not talking about armies. Maybe hes talking about militias. But hes certainly not talking about armies. Hes talking about armed and even if its militias, hes talking about ordinary people who, you know, have their hunting guns and are familiar with the use of them. And he says this even though hes a civilian and not one of the founders who fought himself. But thats what he says. So thats the only indication that i know of. So next. My question is a little broad, and maybe a little simple. But basically, from what i understand, the way you describe the constitution of the United States is sort of being a living document, something a lot of people use. Would you say that the bill of rights adds a lot to that fluidity, allowing it to be such a document that in any way it also just changes the perception that we have about rights because of how it changed our understanding of laws and rights . Right, well, marshall does address this in one of his decisions. He says this is a famous line of his. He says, you must never forget he says, you must never forget that this is a constitution that were expounding. What he means by that is that laws are specific. Laws should be specific. They are to address particular problems or particular issues. You know, we want to build a canal. We need to clear a harbor. We need taxes for such and such an amount, you know, and on and on and on, hundreds, thousands of examples. But a constitution is not like that. And he was saying if you try if you tried to address every specific instance in the constitution, youd probably fail for the present, and youd certainly fail for the future, because he says this is built for the future. He uses different times he uses phrases like centuries or for all time, forever. So new stuff comes up, and you have to react to it and the constitution both allows you to react to it and allows you to change the constitution. There is an amendment process. We had these first ten by 1791. Thats not easy. Its not quick, but its also not impossible. And that was deliberately done. The only thing you cant do, the constitution says you cannot do this, is you cannot deprive a state of equal representation in the Senate Without its consent. So that was one thing they said you cannot do. They also said you could not forbid the slaves before 20 years after this is ratified, but that is now a dead letter, since that was 1808. But, no, so the constitution was made to have admit the possibility of change. People also look at the whole document and try to see what is the spirit of the constitution. What is the ethos of it . What are the Guiding Principles . Can we draw any hints or clues to how we should behave from the constitution . Would it be a good idea to pass an amendment to say, well, the presidency shall henceforth be an inherited office . And then the holder at the time that the amendment should be ratified, it shall pass to his eldest son by the rules of pry mow jen tour. You could do that. Would that be smart . I do know there was an argument when the prohibition amendment was being ratified, and it went to the courts. Root was the litigator. They made an argument that the amendment was unconstitutional. The court rejected the argument, but it led to a great headline. Root is the lead counsel. So nom newspaper came up with beer hires root. You cant let those go. You just got to grab them. Yes, sir. In regards to the ninth amendment, states that peoples rights shall not be restricted. Just those that are enumerated in the constitution. Its stated in the negative and because of that one has the impression that its potentially very openended and limitless, and the courts have, therefore, been reluctant to touch that because it could open up a can of worms. Im wondering if you could comment on that. Were talking about the ninth. The eighth is about excessive were talking about the ninth. Yes. Well, i mean, people there is i dont remember the exact word, but there is kind of a nickname for the ninth and tenth amendments among legal types because theyre less often cited. People, they go for the 14th, and they look at the 5th, and then sometimes the 2nd comes into prominence. But the ninth and the tenth, its kind of hard to know what to do with them. As you say, they are very broad and they seem openended. And i cant do any better than that. I can just i can just note the fact that its so and note what we have done with it and what we havent done with it, but there they are. So if there are any clever lawyers out there, go to work. Yes, sir. You mentioned each of the states had bills of rights. I think you said not all of them, but a lot of them have. That new york had 33 that was their that was their suggestion to congress after they ratified the constitution. They said, oh, by the way, here are 33 little ideas we have that you should stick in there. But new york also did have a bill of rights for itself. And one point that hamilton makes several times in the federalist papers is that, well, our bill of rights says nothing about freedom of the press. Here are all these people complaining theres no freedom of the press in the constitution here in new york, but our own constitution doesnt say anything about it. Im sorry. What was your question . No, not at all. If you look at the set of 12, reduced to 10, were there any big ideas from the other states that were left out of the 12, or dove the 12, then 10, just represent a clever summary of those rights that existed in the other states . I think what was mostly left out were provisions to change what i called structural aspects of the constitution. Some of these measures that new york and virginia were saying were, you know, changed the provisions that had to do with import taxes or export taxes or change the percentage of congress which is required for a veto, to overturn a president ial veto, and those are the things that madison was particularly keen to, you know, shoot down because he had been in philadelphia and, you know, through the whole summer and people had argued and argued and argued endlessly, and this is what theyd come up, and nobody got what he wanted. Nobody got everything he wanted. The whole thing was a compromise. Every piece of it was somebodys compromise. He knew if you go back in and start pulling those apart, were just going to be here forever. I think one of the interesting things that didnt make it, madison, he suggested that there be prohibitions on state actions as far as freedom of speech, free exercise of religion and there was some third thing. He was willing to have the constitution forbid states from inhibiting those rights. That was way ahead of his time. The congress, were not going to do that. And it wasnt until the 20th century that the Supreme Court starts saying, we can sneak that into the 14th amendment. Thank you very much. [ applause ] thank you so much. Please stay for the book signing. And thank you all for coming. We hope to see you all again soon. Good night. American history tv on cspan3 continues tuesday night starting at 8 00 p. M. Eastern. A look at mismanagement of the u. S. Nuclear arsenal. After that the evolution of military Weapons Technology from napoleon to the military drones used today. 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